People v. Swint

572 N.W.2d 666 (1997) 225 Mich. App. 353

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Anthony Edward SWINT, Defendant-Appellant.

Docket Nos. 191572, 192493.

Court of Appeals of Michigan.

Submitted April 3, 1997, at Detroit. Decided September 12, 1997, at 9:10 a.m. Released for Publication December 23, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jeffrey L. Sauter, Prosecuting Attorney, and William M. Worden, Senior Assistant Prosecuting Attorney, for People.

State Appellate Defender by Ronald E. Steinberg, for Defendant-Appellant on appeal.

Before MARKEY, P.J., and BANDSTRA and HOEKSTRA, JJ.

MARKEY, Presiding Judge.

Following a jury trial, defendant was convicted on November 14, 1995, of being a felon in possession of a firearm, M.C.L. § 750.224f; M.S.A. § 28.421(6). On November 29, 1995, the trial court held a hearing and determined that defendant was guilty of a probation violation based on defendant's failure to report to his probation officer. At a subsequent sentencing hearing, the trial court found that defendant was a fourth-offense habitual offender and sentenced him to three to ten years' imprisonment for the felon in possession/habitual offender conviction. The court also sentenced defendant to a concurrent term of thirty-two to forty-eight months' imprisonment for the probation violation. In Docket No. 192493, defendant appeals as of right the conviction of felon in possession of a firearm. In Docket No. 191572, defendant appeals as of right the conviction of probation violation. We affirm.

I

On May 20, 1995, while on probation for felonious assault, defendant allegedly handled a rifle while at his home and in the presence of his infant daughter, Elizabeth, and the infant's mother, Denise Simpson. Simpson testified at trial that she and defendant argued that day, that he was suicidal, that he had a rifle in his hands, which he would cradle in his arms, and that "he'd hold it up to his head and wanted to kill himself. He said he'd kill himself if I left." Defendant would not permit Simpson to leave with the child, so Simpson left alone and contacted her mother. Both Simpson and her mother returned to defendant's house. Simpson's mother also testified that defendant threatened to shoot her unless she left his property and would shoot any police officers who came to the house. Both Simpson and her mother left again without the child.

Because she feared for the safety of both her child and defendant, Simpson then contacted the sheriff's department, whose deputies interviewed both women and confirmed defendant's criminal record. The sheriff's deputies surrounded defendant's house, announced their presence to defendant, and instructed him to come out the front door of the house with his hands in the air. Testimony revealed that when defendant did not respond, the sheriff's deputies used sirens to wake defendant, in case he was sleeping. Deputy James West, who had been positioned behind defendant's house, testified that he saw not only the back door of the residence open but also defendant tossing a long-barreled gun into the back yard. "[A] long gun came out the back door and then [defendant] came out the back of the residence, out the back door." Deputy West radioed the other deputies that "[h]e's coming out, he's got a gun." Deputy West and another deputy arrested defendant as he apparently attempted to "[go] for the gun." The gun, a .22 caliber rifle, was found stuck in the ground.

Defendant testified at trial. He denied threatening Simpson but admitted that he begged her not to leave and threatened that if he had to live alone, he would kill himself. He also denied ever holding the rifle in his hands or cradling it in his arms. Defendant also admitted that the rifle was in the kitchen, in plain view, leaning against a wall. He did not know how long the gun had been there because the house was damaged by fire, and he had not lived there for several days. Defendant testified that the woman with whom he previously lived had two sons who came to defendant's house to hunt and to shoot guns, and the rifle at issue belonged to one of them. Luke Cassel, one of the boys defendant referred to, identified the rifle as one that his father had given him for Christmas. He stated that he had taken the rifle to defendant's house in May 1995 to hunt birds, that he had left the gun in defendant's house without defendant's permission, and that he had forgotten about it. Defendant also denied threatening to shoot Simpson's mother or the police if they came to the house but admitted telling her that he would "rather shoot her than look at her."

Defendant further testified that when he was awakened by sirens outside his house and realized that the police were outside, he picked up the gun because he knew that, as a convicted felon, he was not supposed to be around a gun. So, he grabbed the gun and threw it out the back door as far as he could. He denied that he intended to jump out and grab the gun.

II

For the first time in Michigan, we have been asked to determine whether M.C.L. § 750.224f; M.S.A. § 28.421(6)^[1] violates Const. 1963, art. 1, § 6, which states, "Every person has a right to keep and bear arms for the defense of himself and the state."^[2] We find that it does not.

A

Unfortunately, federal cases interpreting the Second Amendment of the United States Constitution provide no guidance to us because the text of the Second Amendment, which states, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," differs significantly from the text of art. 1, § 6. Benjamin v. Bailey, 234 Conn. 455, 467, 662 A.2d 1226 (1995). Moreover, the Second Amendment is not applicable to the states through the Fourteenth Amendment. Miller v. Texas, 153 U.S. 535, 538, 14 S.Ct. 874, 875, 38 L.Ed. 812 (1894). Several states, including Connecticut (art. I, § 15), Alabama (art. 1, § 26), Indiana (art. I, § 32), Ohio (art. I, § 4), Oregon (art. I, § 27), and Wyoming (art. 1, § 24), have constitutional right-to-bear-arms provisions virtually indistinguishable from the language in Const. 1963, art. 1, § 6. Other states, including New Hampshire (part I, art. 2-a) and North Dakota (art. I, § 1), define the list of protected uses of firearms more expansively than Michigan by authorizing the right to keep and bear arms for purposes including "defense of self, family, home and others, lawful common defense, hunting, and recreational use." While some states chose to mirror the language of the Second Amendment, e.g., North Carolina (art. I, § 30), still others make explicit statements in their constitutions that the right to keep and bear arms is subject to state regulation, i.e., Louisiana Constitution, art. I, § 11 ("this provision shall not prevent the passage of laws to prohibit the carrying of weapons concealed on the person"); Colorado Constitution, art. II, § 13 (similar to Louisiana).

In determining whether a Connecticut statute banning assault rifles violated that state's constitutional right to bear arms, the Connecticut Supreme Court set forth a two-tiered method of inquiry that we find compelling in analyzing the issue presented on appeal.^[3]Benjamin, supra at 463, 662 A.2d 1226. First, before we determine what level of scrutiny to apply where a statute is challenged as unconstitutional, we must determine whether the case at bar involves an infringement on a constitutionally protected interest. Id. "To do so, we must define the boundaries of the right invoked. Only if we were to conclude that the statute infringes on an interest in bearing arms that is protected by the state constitution would we have to decide what level of justification the state must proffer to support such an infringement and whether the state has satisfied that burden in this case." Id.

The Benjamin court went on to review the specific language of the Connecticut Constitution, which provides that "every citizen has a right to bear arms in defense of himself and the state." Id., citing Conn. Const., art. I, § 15. We find insightful the court's analysis of this language:

The limiting language of the provision [i.e., "in defense of himself and the state"] may be understood to establish two related principles. First, it demonstrates that the bearing of arms is not valued in and of itself, but only as a means to particular ends. Second, it clearly indicates what purposes arenot accorded explicit constitutional protection: the bearing of arms for any purpose other than defense of one's self or the state.

In this connection, the textual link between the right to bear arms and its enunciated purpose itself suggests a limitation on the nature and scope of the constitutional right. The common law principle permitting one to use deadly force in self-defense has long been restricted by the general rule of reason.... Thus, the constitutional text embodies a rule of reason, rather than an absolute. [Id. at 464-465, 662 A.2d 1226 (emphasis added).]

We agree with the Benjamin court's interpretation of the constitutional right to bear arms and we find it applicable to Const. 1963, art. 1, § 6. Indeed, defendant does not claim that he is being deprived of his right to defend himself or the state. He merely challenges the felon-in-possession statute because it denies him, for a limited time, the right to bear arms for any purpose, thereby valuing the bearing of arms in and of itself. Indeed, we agree that the bearing of arms for any purpose other than defense of self or state is not accorded explicit constitutional protection. Whether defendant can successfully allege a constitutional infringement on his right to defend himself with arms is an open question under Benjamin however.

We also note that while art. 1, § 6 ensures a Michigan citizen's right to keep and bear "arms," that term is not defined. Black's Law Dictionary (6th ed.), p. 109, defines "arms" as "[a]nything that a man wears for his defense, or takes in his hands as a weapon." While M.C.L. § 750.224f; M.S.A. § 28.421(6) only precludes a former felon's use, possession, receipt, sale or transportation of a "firearm," it is silent regarding other "weapons." Arguably, M.C.L. § 750.224f; M.S.A. § 28.421(6) does not completely foreclose defendant's constitutional right to bear "arms," i.e., nonfirearm weapons, in defense of himself. As the Benjamin court observed in upholding the assault weapons ban in the face of a challenge involving the constitutional right to bear arms, "as long as our citizens have available to them some types of weapons that are adequate reasonably to vindicate the right to bear arms in self-defense, the state may proscribe the possession of other weapons without infringing on" the constitutional right to bear arms. Id. at 465-466, 662 A.2d 1226 (emphasis added). Accordingly, we find that the constitutional right to bear arms contained in Const. 1963, art. 1 § 6, does not guarantee defendant the right to possess a firearm after defendant is convicted of a felony.

B

Even assuming that the felon-in-possession statute infringes upon defendant's right to keep and bear arms under the Michigan Constitution, we find that M.C.L. § 750.224f; M.S.A. § 28.421(6) represents a reasonable regulation by the state in the exercise of its police power to protect the health, safety, and welfare of Michigan citizens.

This Court has found that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." Bay Co. Concealed Weapons Licensing Bd. v. Gasta, 96 Mich.App. 784, 788, 293 N.W.2d 707 (1980), citing People v. McFadden, 31 Mich.App. 512, 188 N.W.2d 141 (1971). Finding that the state has a legitimate interest in limiting access to weapons particularly suited for criminal purposes, such as concealed weapons, the McFadden Court relied upon People v. Brown, 253 Mich. 537, 540-543, 235 N.W. 245 (1931), which affirmed a statute banning the use of certain weapons, including a blackjack, as "within the reasonable and constitutional exercise of the police power of the State to curb crime." May the state then, by extension, assert a legitimate interest in limiting certain individuals' access to firearms as a reasonable exercise of the police power? This is an issue of first impression in Michigan. Regardless, we are guided by several tenets of constitutional and statutory interpretation as we strive to answer this question.

We review constitutional questions de novo on appeal. People v. Pitts, 222 Mich.App. 260, 263, 564 N.W.2d 93 (1997). When interpreting a constitutional provision, our primary duty is to ascertain the purpose and intent of the provision. We do so by determining the intent of the people who adopted the constitutional provision by reference to the state of the law or the custom previously existing rather than by reference to today's changed views. Mahaffey v. Attorney General, 222 Mich.App. 325, 334-335, 564 N.W.2d 104 (1997). "Thus, a court should place itself in the position of the framers and ascertain what was meant at the time the provision was adopted." Id. at 335, 564 N.W.2d 104. Moreover, statutes are presumed constitutional and "[e]very reasonable presumption must be made in favor of constitutionality." Id. at 344, 564 N.W.2d 104. We therefore have a duty to construe a statute as constitutional unless, of course, unconstitutionality is clearly apparent. Id.

C

While we find no Michigan cases on point, we do find authority from other jurisdictions supporting a state's ability to exercise its police powers and place certain limitations on the right to keep and bear arms. These jurisdictions have upheld the constitutionality of their felon-in-possession statutes in the face of similar challenges grounded in the right to keep and bear arms.

For example, in Carfield v. State, 649 P.2d 865, 870-873 (Wyo.1982), the Wyoming Supreme Court denied the defendant's constitutional challenge to the state's felon-in-possession statute.^[4] Article 1, § 24 of the Wyoming Constitution provides in relevant part that "[t]he right of citizens to bear arms in defense of themselves and the state shall not be denied." The court also recognized that art. 1, § 24 by its very terms limits the right to bear arms to the defense of self and state, and the defendant could not claim that his possession of a firearm as he broke into his ex-girlfriend's house was justified under either defense of self or state. Id. at 871. Relying on other state court decisions finding that the right to bear arms is subject to the legitimate exercise of the state's police powers, the Carfield court found that the felon-in-possession statute was a reasonable exercise of the police power in furtherance of the public health, safety, and welfare. Id. at 871-872.

In State v. Ricehill, 415 N.W.2d 481, 483 (N.D., 1987), the North Dakota Supreme Court held that the state's constitutional guarantee that the right "to keep and bear arms for the defense of their person, family, property, and the state, and for lawful hunting, recreational, and other lawful purposes, which shall not be infringed," did not conflict with § 62.1-02-01(1) of the state criminal code prohibiting felons from possessing or owning firearms for ten years after the end of their incarceration or probation.^[5] The North Dakota Supreme Court reviewed several other state court opinions to support its decision that the statute was constitutional:

Ricehill argues that the right to bear arms is absolute. He argues that the language of the provision states that the right to bear arms "shall not be infringed," and that this means that the Legislature may place no limits on the possession of arms. We disagree with such a broad reading of the provision. Instead, we believe our Constitution's protection of the right to keep and bear arms is not absolute; although it prevents the negation of the right to keep and bear arms, that right nevertheless remains subject to reasonable regulation under the State's police power. As the Michigan Supreme Court stated in construing that State's right to bear arms, "regardless of the basis of the right to bear arms, the State, nevertheless, has the police power to reasonably regulate it." People v. Brown, 253 Mich. 537, [540-543], 235 N.W. 245, 246 (1931).

In this case the Legislature prohibited the possession of firearms by persons who have previously committed serious crimes. It is patently reasonable for the Legislature to conclude that it is protecting the public welfare by enacting legislation that keeps firearms out of the hands of people who have shown a disposition to harm others. The Louisiana Supreme Court stated, in rejecting a State constitutional right-to-bear-arms challenge to its prohibition against possession of a firearm by a felon under a police-power rationale:

"It is beyond question that the statute challenged in the instant case was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity." State v. Amos, 343 So.2d 166, 168 (La., 1977).

Another State which has concluded that its constitutional provision protecting the right to bear arms is to be tempered by the State's police power is Colorado. In People v. Blue, 190 Colo. 95, 544 P.2d 385 (1975), the defendants had been convicted of violating Colorado's law prohibiting the possession of a firearm by a person previously convicted of a felony. They challenged this conviction under Colorado's constitutional provision protecting the right to bear arms. That provision, which may appear to be more inclusive than that of North Dakota, states:

"Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Blue, 544 P.2d at 390, quoting Art. II, § 13, Colo. Const.

The court rejected the defendants' argument that the right to bear arms was absolute and that the prohibition on firearm possession by a felon thus was unconstitutional. In so concluding, the court stated:

"When rights come into conflict, one must of necessity yield. The conflicting rights involved here are the individual's right to bear arms and the state's right, indeed its duty under its inherent police power, to make reasonable regulations for the purpose of protecting the health, safety, and welfare for the people.

"We do not read the Colorado Constitution as granting an absolute right to bear arms under all situations. It has limiting language dealing with defense of home, person, and property.... In our view, the statute here is a legitimate exercise of the police power.

"... `To limit the possession of firearms by those who, by their past conduct, have demonstrated an unfitness to be entrusted with such dangerous instrumentalities, is clearly in the interest of the public health, safety, and welfare and within the scope of the Legislature's police power.' People v. Trujillo, 178 Colo. 147, 497 P.2d 1 [1978].

"To be sure, the state legislature cannot, in the name of the police power, enact laws which render nugatory our Bill of Rights and other constitutional protections. But we do not read this statute as an attempt to subvert the intent of Article II, Section 13. The statute simply limits the possession of guns and other weapons by persons who are likely to abuse such possession." [Blue], 544 P.2d at 390-391. [Citations omitted.]

We agree with this analysis and thus the right to bear arms must be read in conjunction with the State's exercise of the police power. See also State v. Krantz, 24 Wash.2d 350, 164 P.2d 453 (1945); Carfield v. State, 649 P.2d 865 (Wyo., 1982), and the cases cited therein.

Therefore, we hold that Section 62.1-02-01(1) does not violate the right to keep and bear arms in Article I, Section 1, of the North Dakota Constitution. [Ricehill, supra at 483-484 (emphasis added).]

In Blue, supra at 98-99, 544 P.2d 385, the Colorado Supreme Court found that the state's felon-in-possession statute^[6] was neither unconstitutionally vague nor overbroad and violative of art. II, § 13 of the Colorado Constitution.^[7] The court rejected the assertion that the felon-in-possession statute was a "blanket proscription that cannot be reconciled with the literal constitutional language." Instead, it found that "not all constitutional rights are absolute." Blue, supra at 102-103, 544 P.2d 385. The court distinguished cases where it deemed unconstitutional a statute attempting to prohibit aliens from owning or possessing firearms (a violation of equal protection and property rights) and an ordinance forbidding the possession, use, or carrying of a firearm outside one's own home (a violation of the right to bear arms).^[8]Id. at 104, 544 P.2d 385; see also Chan v. City of Troy, 220 Mich.App. 376, 559 N.W.2d 374 (1996). Rather, the Blue court found that the felon-in-possession statute constituted a legitimate exercise of the state's police power. The court also believed that the constitution contained limiting language dealing with the defense of home, person, and property that are reflected in another section of the state criminal code restricting the right to bear arms in certain circumstances while permitting some individuals to carry a concealed weapon. Blue, supra at 104, 544 P.2d 385.

In McGuire v. State, 537 S.W.2d 26, 28-29 (Tex.Crim.App., 1976), the Court of Criminal Appeals of Texas denied the defendant's challenge that his original conviction for the unlawful possession of a firearm by a felon in violation of Tex. Penal Code Ann. 46.05, should be dismissed because the statute violated the defendant's rights to keep and bear arms in the lawful defense of himself or the state, pursuant to Art. I, § 23, of the Texas Constitution. The McGuire court relied on the earlier ruling in Webb v. State, 439 S.W.2d 342 (Tex.Crim.App., 1969), upholding the constitutionality of the prior felon-in-possession statute. In Webb, id. at 343, the court found that the right of the defendant to arm himself in self-defense, as secured by Art. I, § 23 of the Texas Constitution, was in no way infringed by the state's felon-in-possession statute, Art. 489c, Vernon's Ann Penal Code,^[9] because appellant might have armed himself with any weapon not prohibited in the statute.

Further, in State v. Smith, 132 N.H. 756, 757-758, 571 A.2d 279 (1990), the New Hampshire Supreme Court found that the state's felon-in-possession statute, N.H. Rev. Stat. Ann. 159:3 (1988, Supp.), was constitutional and not in violation of part I, article 2-a of the New Hampshire Constitution, which states: "All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state." N.H. Rev. Stat. Ann. 159:3 (1988 Supp.) provides in part:

No person who has been convicted in this or any other state of a felony against the person or property of another, or who has been convicted of a felony under RSA 318-B [controlled substances legislation], shall own or have in his possession or under his control a pistol, revolver, or other firearm.

An earlier version of the statute permitted felons to have or own a firearm if the felon received a written permit to purchase it from the town selectman, mayor, or chief of police. This provision was altered in 1981 to foreclose the possibility of a convicted felon obtaining a firearm. At the same time, the state legislature proposed part I, article 2-a as a constitutional amendment. Thus, the Smith court opined that the "legislature could not reasonably have intended in 1981 to propose a constitutional amendment that would invalidate RSA 159:3, a statute that had been amended in the same year." Smith, supra at 758, 571 A.2d 279.

The court also noted that because the New Hampshire voters, not the Legislature, made part I, article 2-a an amendment of the state constitution, a "standard constitutional analysis" was in order. Id. at 758, 571 A.2d 279. "Assuming that the right to bear arms is no more absolute than the right of free speech,... a restriction such as that provided by RSA 159:3 (Supp. 1988) may be sustained if it `narrowly serve[s] a significant governmental interest ...'," quoting State v. Comley, 130 N.H. 688, 691, 546 A.2d 1066 (1988). Smith, supra at 758, 571 A.2d 279. The court went on to find that "[t]he governmental interest served by the statute, protection of human life and property, is patently significant," and that "[t]he statute narrowly serves this interest by prohibiting a category of persons likely to be dangerous [i.e., those committing felonies against the person or property of another or a felony under the controlled substances act] from possessing dangerous weapons." Id. Notably, the court observed that although other felons, such as habitual offenders and perjurers, are excluded from the felon-in-possession statute, some felons falling within the statute's reach are not potentially dangerous. Id. "However, on the standard we apply here, the statute need not be perfectly tailored, simply narrowly tailored. We hold that RSA 159:3 (Supp. 1988) narrowly serves a significant governmental interest in protecting the general public and is therefore constitutional." Id.

In Amos, supra at 167, the Louisiana Supreme Court reversed the trial court's finding that the state statute forbidding the possession of a firearm after being convicted of a felony violated the state constitutional guarantee contained in art. I, § 11 (1974) that "the right of each citizen to bear arms shall not be abridged." At the outset, the Amos Court noted that "the right to keep and bear arms guaranteed by the second amendment to the federal constitution is not carried over into the fourteenth amendment so as to be applicable to the states. It operates as a limitation only upon the power of Congress and the national government." Id. at 168. (Emphasis added.) While the court agreed with the defendants' assertion that, having completed their terms of incarceration for their felony convictions, their full rights of citizenship have been restored, it disagreed with the defendants' further contention that any legislative act limiting their right to keep and bear arms is unconstitutional, id. at 168:

The right to keep and bear arms, like other rights guaranteed by our state constitution, is not absolute. We have recognized that such rights may be regulated in order to protect the public health, safety, morals or general welfare so long as that regulation is a reasonable one. It is beyond question that the statute challenged in the instant case was passed in the interest of the public and as an exercise of the police power vested in the legislature. Its purpose is to limit the possession of firearms by persons who, by their past commission of certain specified serious felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity.

To be sure, La. R.S. 14:95.1 is addressed to persons who are citizens of this state by virtue of having terminated state and federal supervision following their convictions. La. Const. art. 1, § 20 (1974). These persons have, nonetheless, previously been convicted of serious criminal offenses; restoration of citizenship cannot erase this fact. The verbatim transcripts of the constitutional convention debates indicate that neither La. Const. art. 1, § 11 nor La. Const. art. 1, § 20 were ever intended to preclude the type of legislation disputed herein. We are satisfied that it is reasonable for the legislature in the interest of public welfare and safety to regulate the possession of firearms for a limited period of time by citizens who have committed certain specified serious felonies. Courts of other states having statutes and constitutional provisions comparable to our own have similarly concluded that such regulation is constitutionally permissible as a reasonable and legitimate exercise of police power. People v. Blue, [supra]; State v. Krantz, 24 Wash.2d 350, 164 P.2d 453 (1945); Akron v. Williams, 113 Ohio App. 293, 177 N.E.2d 802 (1960); 79 Am. Jur. 2d Weapons, § 24 (1975).[^[10]] [Amos, supra at 168 (emphasis added; citations omitted).]

Despite the slight variations in the various state constitutional provisions on the right to bear arms and statutory provisions on felons in possession, we are persuaded by the analyses set forth in these cases that M.C.L. § 750.224f; M.S.A. § 28.421(6) represents a reasonable exercise of the state's police power to protect the health, safety, and welfare of its citizens. Brown, supra at 541, 235 N.W. 245; Gasta, supra; McFadden, supra. Indeed, "the felon-in-possession statute, M.C.L. § 750.224f: M.S.A. § 28.421(6), is aimed at protecting the public from guns in the hands of convicted felons, whether those weapons are concealed or not." People v. Mayfield, 221 Mich.App. 656, 662, 562 N.W.2d 272 (1997). The Legislature has made the determination that felons, who have exhibited their disregard for ordered society and pose a threat to public safety, and firearms are a lethal combination—at least for three to five years after a felon successfully completes his term of incarceration and probation and pays all requisite fines. Indeed, other states, such as North Dakota and Colorado, have found their felonin-possession laws to be constitutional despite the fact that these statutes prohibit felons from owning or possessing firearms for at least ten years, or twice as long as the maximum five-year prohibition in Michigan. M.C.L. § 750.224f; M.S.A. § 28.421(6) has effectively achieved the legitimate legislative purpose of keeping guns out of the hands of those most likely to use them against the public. See State ex rel. Wayne Co. Prosecuting Attorney v. Bernstein, 57 Mich.App. 204, 208, 226 N.W.2d 56 (1974). Accordingly, we find that defendant's right to bear arms under Const. 1963, art. 1, § 6 is not absolute and is subject to the reasonable limitations set forth in M.C.L. § 750.224f; M.S.A. § 28.421(6) as part of the state's police power.

We therefore uphold the constitutionality of M.C.L. § 750.224f; M.S.A. § 28.421(6) as a reasonable exercise of the state's police power.

III

Defendant also challenges M.C.L. § 750.224f; M.S.A. § 28.421(6) as violating U.S. Const., art. I, § 10 and Const. 1963, art. 1, § 10, the Ex Post Facto Clauses of the state and federal constitutions because his felony offenses were committed before the felon-in-possession statute was enacted in 1992. We disagree. This Court recently held that application of M.C.L. § 750.224f; M.S.A. § 28.421(6) to a defendant based upon his possession of a firearm after the effective date of the statute where he was convicted of the predicate felony before the statute's effective date did not violate the Ex Post Facto Clauses of the Michigan and United States Constitutions. See People v. Tice, 220 Mich. App. 47, 51-52, 558 N.W.2d 245 (1996):

In this case, the statute M.C.L. § 750.224f; M.S.A. § 28.421(6) is obviously punitive in that it imposes criminal penalties for its violation. This does not, however, establish that the statute impermissibly punished defendant for acts that preceded the date the statute took effect. To the contrary, the conduct being punished in this case was defendant's possession of a firearm at a time after the enactment of the statute. While tied to defendant's status as a convicted felon, the punishment was not imposed for the prior crime, but for his recent act of possessing a firearm. Furthermore, the state's predominant interest in enacting M.C.L. § 750.224f; M.S.A. § 28.421(6) was not the infliction of further punishment on those who had been convicted of previous felonies. Instead, the primary purpose of the statute was to protect the public by precluding certain convicted felons from possessing firearms. Because the protection of public safety is a valid exercise of the police power, Taylor [v. Secretary of State, 216 Mich.App. 333, 548 N.W.2d 710 (1996) ], we find that application of M.C.L. § 750.224f; M.S.A. § 28.421(6) to a person who is a convicted felon as a result of a conviction of a felony committed before the date that statute took effect does not violate the Ex Post Facto Clauses of the United States and Michigan Constitutions. [Emphasis added.]

IV

Defendant also argues that the trial court erred in failing to provide the jury with a definition of the term "possession" in its instructions regarding the felon-in-possession statute and despite the jurors' questions during deliberations regarding the meaning they should give to the term. Defense counsel failed, however, to object to the court's instructions either before the start of jury deliberations or after the court responded to the jurors' inquiries. Failure to object to jury instructions waives error unless relief is necessary to avoid manifest injustice, People v. Turner, 213 Mich.App. 558, 573, 540 N.W.2d 728 (1995), and we find no manifest injustice here. Moreover, any error was harmless beyond a reasonable doubt in light of defendant's testimony at trial that he held the firearm on the night of the incident and threw it out the door when the sheriff's deputies arrived at his house. M.C.L.A. § 769.26; M.S.A. § 28.1096; see People v. Figgures, 451 Mich. 390, 402, 547 N.W.2d 673 (1996) (unpreserved, nonconstitutional error).

V

Finally, defendant argues that the trial court violated his right to a fair trial because the court denied his motion to exclude evidence of his prior felony conviction of assault with a dangerous weapon in exchange for a stipulation and plea that defendant had been convicted of felonious assault and was ineligible to possess a firearm. We agree and find that the trial court abused its discretion by denying the motion. Old Chief v. United States, 519 U.S. ___, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997).

In Mayfield, supra at 661, 562 N.W.2d 272, we recently addressed a defendant's challenge to the manner in which the prosecution introduced evidence of his prior felony conviction in a felon-in-possession case. In that case, the defendant offered no type of stipulation to the trial court and was precluded on appeal from contending that the admission of evidence beyond the mere fact of his conviction constituted error, so we found no manifest injustice. Id. As an aside, however, we stated that "had defendant offered to concede the fact of the prior conviction, admission of evidence beyond such a stipulation may have constituted prejudicial error. See

Old Chief v. United States, 519 U.S. ___, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997)." Mayfield, supra at 661, 562 N.W.2d 272. In Old Chief, 519 U.S. at ___, 117 S.Ct. at 648, 136 L.Ed.2d at 584, the defendant requested that the trial court enter an order requiring the prosecution to refrain from mentioning the name and nature of his underlying felony "except to state that the Defendant has been convicted of a crime punishable by imprisonment exceeding one (1) year" in his prosecution for being a felon in possession of a firearm.^[11] The trial court rejected his offer to stipulate and permitted the prosecutor to introduce evidence of the defendant's felony conviction of assault causing serious bodily injury. Id. 519 U.S. at ___, 117 S.Ct. at 648, 136 L.Ed.2d at 584-586. Reversing the Ninth Circuit Court of Appeals' affirmance of the defendant's conviction, the Supreme Court, id. 519 U.S. at ___, 117 S.Ct. at 650, 136 L.Ed.2d at 588, determined that FRE 403, which is identical to MRE 403,^[12] precluded the admission of evidence regarding the name and nature of the defendant's underlying felony in light of the offered stipulation to prevent, as the defendant argued, "generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged," i.e., improper propensity evidence that creates a prejudicial effect outweighing ordinary relevance:

In dealing with the specific problem raised by [18 U.S.C.] 922(g)(1) [the federal felon-in-possession statute] and its priorconviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case, for the reasons already given, but will be substantial whenever the official record offered by the government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious.... [Old Chief, supra, 519 U.S. at ___, 117 S.Ct. at 652, 136 L.Ed.2d at 590-591.]

Concluding that the risk of unfair prejudice substantially outweighed the discounted probative value of the record of conviction, the Supreme Court reversed the conviction and remanded the case. Id., 519 U.S. at ___, 117 S.Ct. at 655-56, 136 L.Ed.2d at 594-595. Notably, the Court stated in a footnote, "[I]n remanding, we imply no opinion on the possibility of harmless error, an issue not passed on below." Id., 519 U.S. at ___, 117 S.Ct. at 656, n. 11, 136 L.Ed.2d at 595, n. 11.

Defendant argues that he was willing to stipulate that he committed felonious assault rather than permit the court and the prosecution to inform the jury that he was convicted of assault with a dangerous weapon. On the basis of the persuasive authority of Old Chief, we find that the trial court abused its discretion by refusing to accept defendant's stipulation.

Despite this abuse of discretion, however, we find that this preserved, nonconstitutional error was harmless in light of the overwhelming evidence presented at trial. People v. Mateo, 453 Mich. 203, 213-215, 220, n. 21, 551 N.W.2d 891 (1996). "The defendant's right to a fair trial by jury requires that preserved error be reviewed in terms of its effect on the factfinder," id. at 221, 551 N.W.2d 891. Thus, "reversal is only required if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence." Id. at 215, 551 N.W.2d 891.^[13]

Here, defendant testified at trial that he picked up the gun and threw it out the back door of the house when he realized that the police were outside because he knew that felons were not allowed to have firearms. Even if the jury disbelieved the testimony of Simpson and her mother regarding defendant's holding and cradling the gun in his arms as he threatened to shoot himself and the police, defendant's admission and Deputy West's testimony at trial established that defendant possessed the firearm, i.e., he knew it was in the kitchen, he picked it up, and he threw it outside. Reviewing the record as a whole, we believe that the actual prejudicial effect of the error on the factfinder in the case at hand was minimal, not only in light of defendant's admission but also considering the testimony at trial that "assault with a dangerous weapon" and "felonious assault" were one and the same offense. Indeed, defendant did not agree to stipulate, like the defendant in Old Chief, supra, 519 U.S. at ___, 117 S.Ct. at 648, 136 L.Ed.2d at 584, that he merely committed a crime punishable by imprisonment exceeding one year; rather, he only wanted the jury to hear that he was convicted of felonious assault, not assault with a dangerous weapon. We believe that defendant's stipulation, while it may have slightly whitewashed the prior felony offense, still would have placed the jury on notice regarding the type of felony that he committed. Accordingly, we find that the trial court's error was harmless. Mateo, supra.

Affirmed.

NOTES

[1] M.C.L. § 750.224f; M.S.A. § 28.421(6) provides:

(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, Carry, ship, receive, or distribute a firearm in this state until the expiration of 3 years after all of the following circumstances exist:

(a) The person has paid all fines imposed for the violation.

(b) The person has served all terms of imprisonment imposed for the violation

(c) The person has successfully completed all conditions of probation or parole imposed for the violation.

(2) A person convicted of a specified felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state until all of the following circumstances exist:

(a) The expiration of 5 years after all of the following circumstances exist:

(i) The person has paid all fines imposed for the violation.

(ii) The person has served all terms of imprisonment imposed for the violation.

(iii) The person has successfully completed all conditions of probation or parole imposed for the violation.

(b) The person's right to possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm has been restored pursuant to section 4 of act No. 372 of the Public Acts of 1927, being section 28.424 of the Michigan Compiled Laws.

(3) A person who possesses, uses, transports, sells, purchases, carries, ships, receives, or distributes a firearm in violation of this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or a fine of not more than $5,000.00, or both.

(4) This section does not apply to a conviction that has been expunged or set aside, or for which the person has been pardoned, unless the expunction, order, or pardon expressly provides that the person shall not possess a firearm.

(5) As used in this section, "felony" means a violation of the law of this state, or of another state, or of the United States that is punishable by imprisonment for 4 years or more, or an attempt to violate such a law.

(6) As used in subsection (2), "specified felony" means a felony in which 1 or more of the following circumstances exists:

(i) An element of that felony is the use, attempted use, or threatened use of physical force against the person or property of another, or that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(ii) An element of that felony is the unlawful manufacture, possession, importation, exportation, distribution, or dispensing of a controlled substance.

(iii) An element of that felony is the unlawful possession or distribution of a firearm.

(iv) An element of that felony is the unlawful use of an explosive.

(v) The felony is burglary of an occupied dwelling, or breaking and entering an occupied dwelling, or arson.

[2] Notably, the preceding Michigan Constitution of 1908 provided in art. 2, § 5: "Every person has a right to bear arms for the defense of himself and the state." The Convention Comment to Const. 1963, art. 1, § 6, provided, "[n]o change from Sec. 5, Article II, of the present [1908] constitution, except for the insertion of the words `keep and' which brings the section into conformity with a similar provision in the U.S. Constitution; thus, the right to `keep' as well as `bear' arms is recognized." Hence, the Constitutional Convention that proposed the current Michigan Constitution did not intend to reduce the protection of the right to bear arms granted by Const. 1908, art. 2, § 5.

[3] Notably, the Connecticut Supreme Court in Benjamin, supra at 464, n. 6, 662 A.2d 1226, explicitly stated that "we reserve the question whether a statute such as General Statutes § 53a-217, which criminalizes the possession of any firearm by a convicted felon, infringes on a constitutional interest protected by article first, § 15." It then referred the reader to compare the cases of People v. Blue, 190 Colo. 95, 103, 544 P.2d 385 (1975), with State v. Smith, 132 N.H. 756, 758, 571 A.2d 279 (1990), which we will do later in our analysis.

[4] Wy. Stat. 6-11-115(a) (1981 Cum. Supp.), provides:

"Any person who has previously pleaded guilty or been convicted of murder, voluntary manslaughter, assault to commit murder, aggravated assault, robbery, burglary or sexual assault in the first or second degree, or mayhem, unless pardoned, and who uses or has in his possession any firearm is guilty of a felony.

[5] N.D. Cent. Code. 62.1-02-01(1) provides:

A person who has been convicted anywhere for a felony involving violence or intimidation, as defined in chapters 12.1-16 through 12.1-25, is prohibited from owning a firearm or having one in possession or under control for a period of ten years from the date of conviction or release from incarceration or probation, whichever is later.

[6] Colo. Rev. Stat. XX-XX-XXX (1963 Perm. Supp.) provides:

Possession of weapons by previous offenders. Any person previously convicted of burglary, arson, or a felony involving the use of force or violence or the use of a deadly weapon, or attempt or conspiracy to commit such offenses, under the laws of the United States of America, the state of Colorado, or another state, within the ten years next preceding or within ten years of his release from incarceration, whichever is greater, who shall possess, use, or carry upon his person a firearm or other weapon mentioned in sections 18-1-901(3)(h) or sections 18-12-101 to XX-XX-XXX, commits a class 5 felony. A second or subsequent offense under this section is a class 4 felony.

[7] Article II, § 13 of the Colorado Constitution reads:

Right to bear arms. The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.

[8] This case, Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972), involved a nonfelon defendant, "and the issue of whether like restrictions could not constitutionally be imposed on persons who had been convicted of felonies involving the use of force or violence or certain dangerous weapons was not there considered." Blue, supra at 103, 544 P.2d 385.

[9] Article 489c provides, in part:

Section 1. It shall be unlawful for any person who has been convicted of burglary or robbery, or of a felony involving an act of violence with a firearm under the laws of the United States or of the State of Texas, or of any other state, and who has served a term in the penitentiary for such conviction, to have in his possession away from the premises upon which he lives any pistol, revolver or any other firearm capable of being concealed upon the person.

[10] Justice Calogero, who dissented in Amos, supra, observed that the Second Amendment of the United States Constitution, like the earlier art. 1, § 8 of the 1921 Louisiana Constitution linked the right to carry a gun with the right to support a militia. Thus, the 1974 constitution, which makes no reference to the militia, grants citizens the right to keep and bear arms. Because the defendants are citizens with full rights of citizenship once state and federal supervision over them has ceased, the justice believed that they are entitled to the same rights afforded all citizens. The justice also distinguished several other cases upholding the constitutionality of other felon-inpossession statutes because those states based their citizens' rights to keep and bear arms on the need for a militia. Thus, Justice Calogero, recognizing the policy reasons behind the legislature's actions, was constrained by the "broad new language" of the 1974 constitution in finding the felon-in-possession statute was unconstitutional. Id. at 169-170.

[11] See 18 U.S.C. § 922(g)(1).

[12] MRE 403 states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

[13] We recognize that there exists a proliferation of cases presenting different standards of review for determining harmless error where preserved, nonconstitutional error is alleged. See People v. Clark, 453 Mich. 572, 589, n. 14 (Mallett, J.), 595 (Cavanagh, J.); 556 N.W.2d 820 (1996); People v. Humphreys, 221 Mich.App. 443, 448-449, 561 N.W.2d 868 (1997); People v. Huyser, 221 Mich. App. 293, 299, 561 N.W.2d 481 (1997); People v. Dunham, 220 Mich.App. 268, 272, 559 N.W.2d 360 (1996). We do not need to resolve this apparent conflict in disposing of the case at bar, but mention these cases for the benefit of the bench and bar.